Complaints | Inadvertent disclosure

Your firm has recently been instructed on a new contentious matter. The day-to-day conduct of this matter has been allocated to you, a senior solicitor at the firm, by the matter partner who still retains overall control. This matter has been rumbling on for some time despite the parties' attempts to resolve the issues in dispute in accordance with the protocol. The protocol no longer being productive, you and your client decide to issue proceedings. Having finalised the claim form and particulars of claim and requested a cheque, you then ask a newly qualified lawyer (NQ) to put together the appendices to the particulars and then file and serve the claim. They do so, sending the email effecting service of proceedings but without having checked with you first.

Upon review of the attached documents, you notice that the NQ has included an additional document in the appendices that you were not intending to disclose at this stage. Although parties to the litigation will be required to provide disclosure, timing can be critical, particularly if ADR is being considered prior to disclosure lists being produced as this may affect any settlement sums considered.

The action that will need to be taken at this stage will depend on the nature and content of the document. If the document in question was sensitive and one over which you were asserting privilege, then this could have fairly disastrous consequences and you should not only be apologising unreservedly to your client and offering an appropriate remedy but informing your firm's professional indemnity insurers.

In this case, the document was not privileged and actually fairly innocuous in content. However, whatever the content of the document, appropriate remedial action must include the opportunity to improve the aspect of service that led to this problem.

The main consideration here is the requirement to sign off/check documents. Clearly you must discuss with the NQ and the partner the circumstances in which various classes of documents must be checked and who by. It is obviously not time efficient for the partner to check all correspondence so it is important to take a proportionate approach in conjunction with any particular requirements prescribed in the client's SLA (if applicable) and firm or department policy (including data protection policies among others).

A review of policy may be in order if it is felt that current requirements are not sufficiently rigorous to minimise the risk of a similar but potentially more serious incident occurring again. Another issue to address is communication; clearer communication between fee earners might have prevented this incident occurring but will also be of benefit to the conduct of this and other matters in general.

Although a firm would aim to have '¨policies and practices in place the prevent incidents before they occur, you should use the lessons from problems and any resulting complaints to test those policies and continually improve your firm's business practices. Dedication to continual improvement is key to providing good client service and to a successful business.

Copyright & permissions